State v. Prestridge
| Decision Date | 20 May 1981 |
| Docket Number | No. 80-KA-2490,80-KA-2490 |
| Citation | 399 So.2d 564 |
| Parties | STATE of Louisiana v. George PRESTRIDGE. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Rowley, Dist. Atty., Glenn Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
Gary J. Dragon, Chalmette, Kirk A. Vaughn, Arabi, for defendant-appellant.
George Prestridge was charged by grand jury indictment with the aggravated rape of a 10-year-old girl in violation of LSA-R.S. 14:42. Following a trial by jury defendant was found guilty as charged, with 10 of the 12 jurors concurring in the guilty verdict. The mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence was imposed. Defendant appealed, presenting 36 assignments of error.
Defendant was convicted of the aggravated rape of the 10-year-old daughter of a woman with whom defendant, although married to someone else, had for several years maintained a romantic and sexual relationship. The mother was charged with the defendant in the same grand jury indictment but her motion to sever for trial was granted by the trial court. The offense occurred during the early morning hours of March 19, 1978 at the trailer home of the woman. Defendant and the woman, who had been out drinking to celebrate the woman's birthday, returned to her house trailer at approximately 1:00 a.m. Present in the house trailer were the 10-year-old daughter, the woman's seven-year-old son, a teenage babysitter, and the babysitter's boyfriend.
Defendant and the woman retired to the woman's bedroom. After a short while defendant called to the victim to join them in the bedroom. After he repeated this request several times the child acquiesced. About 10 minutes later she returned crying to the front part of the trailer. At this point the victim's mother was heard to call "get back here, George wants you." The child, now hysterical, returned to the bedroom; she left the bedroom soon thereafter and proceeded to the bathroom. The babysitter tried to comfort the child but to little avail. The child continued to cry and returned to her room.
The next morning the babysitter awakened and spoke to the child at approximately 9:00 a.m. She asked the child what had so upset her earlier that morning. At first hesitant, the child finally stated "George hurt me like he did once before." The babysitter reported this to the child's mother who replied that the child was lying.
The child testified that on the night in question she was called back to her mother's bedroom. She found her mother passed out in the bed with the defendant lying beside her. The defendant placed the child in bed and removed her night clothes and underwear. He fondled her genitals and kissed her on the lips. He made her hold his penis in her hand to erection, turned her on her side and rubbed his erect penis around, up and down, and across her vagina for about five minutes. The child testified that his penis touched the entrance to the opening in her vagina but that defendant did not try to insert it all the way as he had on a previous occasion; however, it went in a "little bit" anyway. The episode continued for about five minutes. The child told defendant she had to go to the kitchen to get something to eat and he let her go.
After the episode was reported to the child's stepsister, the stepsister took her to the St. Bernard Parish coroner, Dr. Daigrepont, who examined the child five days after the offense. Dr. Daigrepont subsequently had a disabling stroke and was unavailable at the time of trial. His report was identified and filed into evidence. In the report the doctor noted a moderate amount of discoloration and a mild swelling of the vaginal lips. He noted that the hymen was not intact but had not been torn recently.
The defendant took the stand and denied that he had any contact with the child.
The child's mother also denied that the episode took place, testifying that she was not passed out and would have known if the events had occurred as testified to by the child. The mother testified that the only time the child was in the bedroom was when she brought the mother a glass of water at the mother's request.
Assignments of Error Nos. 1 and 20:
Defendant argues by these assignments of error that the verdict was contrary to the law and evidence for lack of proof of vaginal penetration.
At the time of the offense LSA-R.S. 14:42 ( Acts 1977, No. 343) provided:
LSA-R.S. 14:41 ( Acts 1975, No. 612) defined heterosexual rape as follows:
The prosecution is required to prove beyond a reasonable doubt every element necessary to constitute the crime charged. Louisiana Constitution 1974, Art. 1, §§ 2 and 16; State v. Searle, 339 So.2d 1194 (La.1976). Accordingly, a conviction based on a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. State v. Peoples, 383 So.2d 1006 (La.1980). In review of the sufficiency of the evidence to support a conviction, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Byrd, 385 So.2d 248 (La.1980); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It is not necessary that the state prove the accused's guilt beyond all doubt; rather, his guilt must be proved beyond all reasonable doubt. State v. Allen, 276 So.2d 868 (La.1973). If his guilt is not established in compliance with that standard, it is the duty of the jury to acquit. State v. Anderson, 206 La. 986, 20 So.2d 288 (1944).
In this case it was necessary that the prosecution prove beyond a reasonable doubt the essential element of sexual intercourse, that is, sexual penetration, however slight. Defendant does not argue that the evidence was insufficient to establish the occurrence of the episode generally as related by the victim. The thrust of defendant's argument is that the victim's testimony itself negates the element of sexual penetration, or at most is vague and inconclusive, and is insufficient to justify a rational trier of fact concluding beyond a reasonable doubt that there was penetration.
Without quoting all of the testimony of the victim, a fair summary of her testimony is that defendant placed her in a position facing him with her legs over his. He placed his erect penis next to her vagina and moved it around, backwards and forwards, up and down, for about five or six minutes. Although he did not try to put it in like he did (unsuccessfully) on a previous occasion, it did "touch inside", "when he was moving it around he was getting into it", "going everywhere with it", "did have it in a little bit."
Based on the victim's testimony and her description of the physical contact between the defendant and herself, the jury, based on their common knowledge and understanding of the human anatomy, male and female, could rationally, and obviously did, conclude that there was sexual penetration, however slight. The evidence was sufficient to support the finding of sexual penetration beyond a reasonable doubt.
The testimony of Dr. Bertucci, called as a witness by the defense, does not, contrary to defendant's argument, negate the fact of penetration. The essence of the testimony of the doctor, who did not examine the victim, was that if there had been any penetration there would have been complete penetration, resulting in greater evidence of the act than disclosed by the coroner's report. The doctor's opinion was competent evidence to be considered by the jury but it in no way constituted conclusive or even persuasive medical evidence that there was not slight penetration.
These assignments of error are without merit.
Assignment of Error No. 2:
By this assignment defendant argues that his trial counsel was so ineffective as to deny him due process of law. The issue of ineffective assistance of counsel is more properly raised by writ of habeas corpus. State v. Williamson, 389 So.2d 1328 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979). In apparent recognition of this rule no specific instances of error or inadequate representation are pointed out by the defendant. Accordingly, the issue will not be addressed by this court at this time.
Assignment of Error No. 3:
By this assignment of error the defendant complains that the statute under which he was charged was unconstitutionally vague. In particular, defendant claims that the definition of rape provided by LSA-R.S. 14:41 and 42 is constitutionally inadequate. Defendant argues that this point is dramatically demonstrated by the fact that the jury in this case interrupted its deliberations to request a legal...
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